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The Brain and the Law

To what extent are the brain sciences relevant to the law? There are several problems here:

  1. The conceptual framework of neuroscience is strikingly different from that used in law, which implies that results from the former domain cannot automatically be applied in the latter. We need conceptual clarification to say something sensible about this point.
  2. The concept of mens rea is quite different from the concept of causally efficacious brain activity.
  3. There is an age-old tension between understanding and forgiving (and possibly curing or treating), on the one hand, and attribution of responsibility (and consequent punishment and revenge), on the other. This tension manifests itself in the court cases mentioned above. The tension becomes greater as we become more and more capable of giving causal explanations of behavior. Does this development threaten to make the law irrelevant? Philosophers have been shedding light on this issue for centuries. Their insights warrant translation into modern terms.
  4. It is sometimes argued that the law should take neuroscientific findings into account, but this has—arguably for good reasons—never been done so far. Examination of this issue, which involves both practical and theoretical considerations, is interesting for philosophical reasons and essential for legislative policy.
  5. Much of the law is concerned with the regulation of economic processes. The advancement of knowledge about the nature of economic decision making, the property instinct, deception, and so on, could well have repercussions in the legal domain.

Much has already been written about these topics, but all of it reveals a typically Anglo-American point of view. Some counterbalance would be welcome—and the insights obtained abroad need reconsideration anyway because the Dutch law and legal system are different from those in operation abroad. Apart from this, the philosophical literature about causation, agency, the compatibility of determinism with the freedom of the will, guilt, responsibility and “being in control” needs to be taken into consideration to a greater extent than has been done so far. All these issues are urgent because legislators are now beginning to develop policies on how to take the findings of the neurosciences into account.

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